Missouri Supreme Court ruling called groundbreaking

Friday, February 12, 2010 | 1:00 p.m. CST

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ST. LOUIS — Legal experts say a Missouri Supreme Court ruling on a whistle-blower case this week is groundbreaking for two reasons.

The court on Tuesday ruled that a juror's anti-Semitic remarks made during deliberations could result in a retrial. That decision to delve into the deliberation room was called a first of its kind in Missouri.

The case involved a lawsuit by Michelle Fleshner, who was fired in 2003, two days after talking to federal investigators examining wage and overtime practices at her workplace, Pepose Vision Institute in Chesterfield.

"It's the first time the Missouri Supreme Court has clearly and unequivocally said that an employee who refused to engage in illegal conduct or reports illegal conduct ... has a claim," Mary Anne Sedey, formerpresident of the National Employment Lawyers Association, told the St. Louis Post-Dispatch. The group had filed a friend-of-the-court brief.

Not only was Fleshner fired from Pepose Vision, but owner Jay Pepose got her fired after she was hired by a St. Louis ophthalmology practice, citing a noncompete clause in her contract.

At trial in 2007, Pepose, his wife and lawyers told jurors the timing of Fleshner's firing was coincidental. She was among 30 workers to be dismissed, and the cuts had been planned for months, they said.

Fleshner's lawyer, Jerome Dobson, said that until Tuesday's ruling, plaintiffs alleging they were improperly fired had to "prove that it was the sole and exclusive reason for your termination." He said the decision "potentially provides additional protection for every employee in the state of Missouri."

But the trial raised another issue when a juror told Pepose's lawyer after the trial that another juror had called Pepose's wife a "Jewish witch" and a "penny-pinching Jew." The trial judge refused to hold a hearing about the comments.

In its ruling, the high court sent the case back to Judge Mark D. Seigel for that hearing.

Judge Mary R. Russell wrote, "If the right to trial by jury is to mean anything, all 12 jurors must be 'fair and impartial.'"

The opinion cited at least three other states whose courts have held the same, though courts in some other states have differed.

Dobson said Thursday he looks forward to Seigel's hearing, which may not occur for months.

Ben Clark, a lawyer who filed a friend-of-the-court brief on behalf of the Anti-Defamation League, lauded the decision as "powerful and far-reaching."

"The trial judges and trial lawyers in this state ... are going to have to read this case very closely, and understand that the normally sacrosanct nature of jury deliberations are no longer entirely that way," Clark said.